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L.R. Sharma Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 866 of 1978
Judge
Reported inILR1979Delhi340
ActsDelhi Education Act, 1973 - Sections 8(1); Delhi Education Rules - Rule 110(1); Specific Relief Act - Sections 14; Constitution of India - Aritcle 226
AppellantL.R. Sharma
RespondentDelhi Administration and ors.
Advocates: G.D. Gupta,; Anita,; P.D. Bhargava and;
Cases ReferredUnion of India v. Shri Gopal Chandra Misra and
Excerpt:
.....invoked the pension rules in his retirement letter and, thereforee, was not entitled to withdraw letter retirement before retirement became effective without the approval of the authority. further, the petitioner's contention that he could not have sought premature retirement before completing 30 years of service because he had only put in 27 years in the school was not tenable as he himself had claimed that the service rendered by him prior to his joining the school be computed for pensionary benefits. - - the persistent appeal of parents and others and in the larger interest of students' his letter seeking permission to retire voluntarily may be 'treated as withdrawn'.the management reacted rather quickly to his communication and informed the petitioner by their letter of may 30,..........school declining to give effect to the petitioner's communication withdrawing his letter seeking voluntary retirement and treating him as having relinquished his post. the petition has been filed in the following circumstances: (2) the petitioner joined shri mahavir jain higher secondary school, a government recognised and aided institution in 1951 as p.g.t. (english) and was promoted as acting principal in 1966 and continued to act as principal until february 1968. pursuant to a selection for appointment to the post of principal, the petitioner was appointed as principal of the school in august 1970, and was working in that capacity during the material period. it has been a common case of the parties that before the coming into force of the delhi education act, 1973, for short, the.....
Judgment:

H.L. Anand, J.

(1) This petition under Article 226 of the Constitution of India by a former Principal of a Government recognised and aided school is directed against the action of the management of the school declining to give effect to the petitioner's communication withdrawing his letter seeking voluntary retirement and treating him as having relinquished his post. The petition has been filed in the following circumstances:

(2) The petitioner joined Shri Mahavir Jain Higher Secondary School, a Government recognised and aided institution in 1951 as P.G.T. (English) and was promoted as acting Principal in 1966 and continued to act as Principal until February 1968. Pursuant to a selection for appointment to the post of Principal, the petitioner was appointed as Principal of the school in August 1970, and was working in that capacity during the material period. It has been a common case of the parties that before the coming into force of the Delhi Education Act, 1973, for short, the Act, the age of retirement of the petitioner in terms of the Delhi Education Code, 1965, was 60 years and this condition of service of the petitioner was preserved by first proviso to Section 8(1) of the Act. As the petitioner did not opt for different terms of conditions of service with regard to retirement, he was entitled to continue in service until attaining the age of 60 years. Rule 110(1) of the Rules, framed under the Act, makes provision for the age of retirement of employees of recognised private schools at 58 but, consistent with provisions of Section 8(1), preserved the right of the existing employees to higher age of retirement. Neither the Delhi Education Code nor any of the provisions of the Act or the Rules made there under made any provision for voluntary retirement by the existing employee before the age of superannuation. It appears that the petitioner has, for some time, been dissatisfied with the management of the School and claims that out of sheer frustration, arising out of his inability to improve matters on account of resistance, the petitioner sought voluntary retirement from service by his letter of March 8, 1978 (Annexure I), by giving three months notice to the management. The voluntary retirement was to take effect from August 8, 1978. The letter invoked the provisions of C.C.S. (Pension) Rules. When the aforesaid communication was sent, the petitioner had already put in 27 years of service in the school and laid claim to service rendered elsewhere prior to his joining the school, being taken into account for the purpose of his pensionary benefits. This is indicated in his letter of February 24, 1978, to the Deputy Director of Education (Annexure R-2). The Managing Committee of the school claimed to have considered the request of the petitioner for voluntary retirement in its meeting held on April 26, 1978, and decided to accept the same and to allow the petitioner to voluntarily retire on August 7, 1978, in terms of the petitioner's letter. It is claimed that the petitioner attended this meeting and had affixed his signature to the minute book. The petitioner admits to having signed the minute book but claims that he had signed it before the meeting started but did not stay to attend it. Be that as it may, by their letter of May 30, 1978 (Annexure R-6). the Manager of the school informed the petitioner that he had been permitted to retire voluntarily on August 7, 1978, on the expiry of three months notice. An intimation of this was also sent to the Education Officer. It appears that subsequent to the letter of resignation, the petitioner had second thoughts, presumably because pressure was brought to bear on him by the parents and Teachers Association and his friends that it would not be in the interest of the school that the petitioner should seek voluntary retirement. The petitioner has placed on record letters exchanged between the petitioner and the Parent-Teachers Association (Annexures Ii and III) and certain other correspondence (Annexure IV) to reinforce this claim. According to the petitioner, because of this friendly pressure, the petitioner informed the Manager of the school by his letter of May 29, 1978 (Annexure V) that in view of the 'changed circumstances. the persistent appeal of parents and others and in the larger interest of students' his letter seeking permission to retire voluntarily may be 'treated as withdrawn'. The management reacted rather quickly to his communication and informed the petitioner by their letter of May 30, 1978 (Annexure VI) that the Managing Committee had decided that the letter of resignation should not be allowed to be withdrawn 'in the best interest of the school and education of the children and in the greater public interest'. The petitioner was eventually relieved on the date from which his voluntary retirement was to take effect in spite of the protest of the petitioner that on the withdrawal of his letter of retirement he was entitled to continue in service until he attained the age of superannuation. This is how the petitioner filed the present petition on or about August 17, 1978. The plea of the petitioner for stay of the operation of the decision of the Managing Committee to relieve the petitioner was, however, turned down.

(3) The petition is opposed on behalf of the Managing Committee, which is respondent No. 3 to the petition. Delhi Administration and the Director of Education are respondents 1 and 2 respectively, but neither of them have taken any interest in the present proceedings, presumably because they are treating the dispute as being essentially between the petitioner, on the one hand, and the Managing Committee of the school, on the other.

(4) On behalf of the Managing Committee of the school, two preliminary objections were raised to the maintainability of the petition. In the first instance, it is urged that the school was run by a private registered Society, through its Managing Committee, and neither the Society nor the Managing Committee are statutory bodies and are, thereforee, not amenable to the writ jurisdiction of this Court It is further urged on the authority of the decision of the Supreme Court in the case of Executive Committee of Vaish Degree College. Shamli & others, (1) that the employment of the petitioner in the school was contractual by nature, and that the petitioner was virtually seeking enforcement of a contract of personal service, and that the relief sought by the petitioner would not only militate against the provisions of Section 14 of the Specific Relief Act, but be also outside Article 226 of the Constitution of India. It is urged that in any event, this Court should not exercise its extraordinary jurisdiction to give relief to the petitioner which the petitioner would not be entitled to seek even in a regular civil action. Secondly, it is urged that, assuming that this Court was otherwise entitled to give relief to the petitioner in the present proceedings, the petitioner would not be entitled to any relief because the action of the Management could not be said to be contrary to any statute. It was urged that the school was a minority institution entitled to administer its affairs without any interference from the state and was, thereforee, outside the provisions of the Act and the Rules framed there under.

(5) After hearing learned Counsel for the parties, it appears that there is no substance in either of the preliminary objections. The school is admittedly a recognised and aided institution and, thereforee, governed by the provisions of the Act and Rules framed there under, except in so far as some of the provisions of the Act and the Rules are expressly made inapplicable to the minority institutions or have been held by this Court to be unreasonable in the case of S. S. Jain Sabha (2). Chapter V of the Rules framed under the Act deals with the scheme of arrangement and, inter alia, provides for the constitution of a Managing Committee. The Managing Committee of the school, thereforee, is the creature of the Rules, even though this Court has held in the case of S. S. Jain Sabha (supra) that some of the provisions of this Chapter would not be applicable to a minority institution. It was not disputed that Section 8, which provides for the terms and conditions of service of employees of recognised private schools, would be applicable even to a minority institution and, inter alia, lays down that none of the conditions of service of employees in the employment of existing schools, at the commencement of the Act, shall be varied to their disadvantage. It was not disputed that the age of retirement of the petitioner was 60 years under the Delhi Education Code and since the petitioner had not opted for the reduced age of 58 provided in Rule 110 of the Rules, the petitioner would be entitled to continue in service until he attained the age of superannuation. It was not disputed that Rule 110 would also be applicable to a minority institution. If that be so, there is no escape from the conclusion that not only the Managing Committee is a creature of the statute, but is also bound by the provisions of the statute and the statutory rules in the matter of retirement of its employees. The decision of the Supreme Court in the case of Vaish Degree College (supra) is clearly distinguishable because that was a case which related to an affiliated College of a University and none of the provisions of the University statutes or Ordinances were applicable to the College, but the Executive Committee of the College was under an obligation to frame Rules laying down conditions of service of its employees in accordance with the provisions of the statutes and Ordinances and it was for this reason that it was held that the Executive Committee of the College was not a statutory body and was merely a Society and when it framed rules consistent with the Ordinances and statutes of the University, to which it was affiliated, these provisions partook of the nature of terms and conditions of a contract of service between the Executive Committee, on the one side, and its employees, on the other. It is in this context that the claim of the employees was treated as an attempt to enforce a contract of personal service and was held to be either barred by the provisions of the Specific Relief Act or be purely discretionary and was turned down because ordinarily a contract of personal service was not judicially enforced. But even in the context of the existing law with regard to the right to enforce a contract of personal service, it is not possible to ignore the distinction between a declaration that a statutory body has not acted in accordance with law in terminating the service of its employee and a simple action for the specific enforcement of a contract of service, even though the effect of both may be the same. The relief sought in the present case falls in the first of the two categories and would not, thereforee, be hit either by the provisions of the Specific Relief Act or the principle of English law, adopted in India, that ordinarily the Court would not grant a specific enforcement of a contract of personal service. Considerable doubt was also cast on the minority character of the institution because it was not disputed that the Society had since amended its Constitution so as to permit any citizen of India to be its member. Whichever way, however, one looks at the matter, it is obvious that the petition is maintainable and if the petitioner succeeds in establishing that the Managing Committee has acted in a manner which was contrary to the Act or the Rules framed there under, the petitioner would be entitled to appropriate relief.

(6) On the merits, the principal question in controversy between the parties has been if the petitioner, who had sought voluntary retirement, was entitled as of right to withdraw the letter of retirement before the retirement became effective.

(7) It is well settled that, unless there may be anything to the contrary in the contract of service of the rules regulating service, it is open to an employee, who had expressed the desire to retire from service and had applied to the authority for the requisite permission may change his mind subsequently and ask for cancellation of the permission thus obtained so long as he continues in service, but not after the relationship has been snapped and where the service of an employee has ceased because the retirement became effective, he could not be held to continue in service and was no longer competent to have the retirement annulled. It is equally well settled that a prospective resignation could be withdrawn before the arrival of the indicated future date and that in the absence of any legal or constitutional bar, a resignation could be withdrawn at any time before it became effective- Reference may be made to the decision of the Supreme Court in the case of Jai Ram, Raj Kumar and, following that, the case of Union of India v. Shri Gopal Chandra Misra and others.

(8) It is unnecessary to go into the question of fact if the Managing Committee met on April 26, 1978, as claimed by it, and decided to accept the request for voluntary retirement and whether or not the petitioner was present in that meeting because it is a common case of the parties that the letter of retirement was to be effective from August 7, 1978, and when it was acted upon on behalf of the Managing Committee, there was no doubt that the retirement was to have effect from that date. The petitioner had admittedly sent his letter of withdrawal of voluntary retirement before the date on which the retirement was to take effect and that being so, the request for voluntary retirement would be deemed to have been withdrawn before the date on which the retirement was to take effect and the petitioner could not, thereforee, be relieved and would be entitled to continue to be the Principal until he attained the age of superannuation.

(9) Learned Counsel for the Managing Committee, however, urged a number of contentions to by-pass the obvious legal effect of the withdrawal. In the first instance, it was urged that the petitioner had sought voluntary retirement in terms of the scheme of voluntary retirement for Central Government employees, the operation of which was extended to the recognised and aided schools in Delhi, and that in terms of the scheme a notice of voluntary retirement could be withdrawn subsequently only with the approval of the appointing authority, provided such request is made before the expiry of the notice. It was not disputed that a scheme of voluntary retirement was announced for the benefit of the Central Government employees which, inter alia. enabled such employees to seek voluntary retirement, after having put in 20 years service, and such voluntary retirement would also give them proportionate pensionary benefits which, but for the scheme, would not have been possible. A perusal of the scheme, a copy of which was enclosed as Annexure R-l also indicates that the letter of voluntary retirement could be withdrawn provided it was done before the expiry of the period of notice but subject to the permission of the appointing authority. The respondents were, however, unable to show how this scheme was applicable to the recognised and aided schools in Delhi, which were governed by the provisions of the Act and the Rules framed there under. It was also not disputed that the scheme itself visualised that the necssary Pension Rules would be suitably amended to incorporate the provisions of the scheme and that no such amendment had been carried out. Respondents were unable to show how such a scheme, could apply unless the scheme had been specifically extended to the employees of the recognised schools and they had otherwise subscribed to the terms and conditions incorporated in the scheme. It is, thereforee, not possible to read, on the basis of the scheme, any power in the Managing Committee to withhold permission to withdraw the letter of retirement.

(10) It was next urged that the petitioner had himself invoked the provisions of the scheme when he sought voluntary retirement and that having taken benefit of the scheme, he was estopped from denying that the scheme was applicable to the recognised schools. This argument is based on a misconception because there is nothing to indicate that the petitioner had invoked any provision of the scheme when he sought voluntary retirement. In the letter seeking voluntary retirement, the petitioner had only referred to C.C.S. (Pension) Rules. There was no reference to any scheme of voluntary retirement.

(11) Lastly, it was urged that in any event, the C.C.S. (Pension) Rules, pursuant to which the petitioner had sought voluntary retirement, and to which he made specific reference in his letter of retirement, precluded the petitioner from withdrawing the letter of retirement except with the permission of the appointing authority. Now. this is true that in the letter the petitioner had sought voluntary retirement as provided in the 'C.C.S. (Pension) Rules'. It was not disputed that Rule 48 of the C.C.S. (Pension) Rules 1977. provided for retirement on completion of 30 years qualifying service and sub-rule (2) of this rule provides that 'A Government servant who has elected to retire under this Rule and has given the necessary intimation to that effect to the appointing authority, shall he precluded from withdrawing his election subsequently except with the specific approval of such authority'. Two things clearly emerge from this Rule. In the first instance, a Government servant could seek voluntary retirement or may be required to retire in public interest if he 'has completed 30 years qualifying service' and if he has sought such voluntary retirement, he may withdraw the election subsequently 'with the specific approval of such authority'. If this Rule was applicable to the petitioner, he could have sought voluntary retirement only if he had completed the 30 years qualifying service and had no unfettered right to withdraw even though the withdrawal was within the intended date of retirement and was dependent on the specific approval of the concerned authority. It was not disputed that neither the Act nor the Rules specifically made the C.C.S. (Pension) Rules applicable to employees of recognised or aided educational institutions in Delhi. It is also beyond doubt that C.C.S. (Pension) Rules do not apply to such employees by their own force because by virtue of Rule 2 of the said Rules, they are made applicable to 'Government servants' and among the categories which are specifically excluded from their application include in terms of clause (h) of that Rule 'persons whose terms and conditions of service are regulated by....... ......................any other law for the time being inforce'. Since the terms and conditions of service of these employees are regulated by the Act and the Rules framed there under, the C.C.S. (Pension) Rules would not, thereforee, be applicable to them. What turned the table on the petitioner, however, is the fact that the petitioner opted for the C.C.S. (Pension) Rules on December 3, 1975 (Annexure R-14) and rule 48 being part of the said Rules became applicable to the petitioner. It was urged on behalf of the petitioner that the retirement age of the petitioner was still to be governed by Rules 110 of the Rules, which preserved the higher age of retirement of existing employees. But there is no conflict between that Rule and Rule 48 of the Pension Rules. Rule 48 of the Pension Rules gives an additional benefit to an employee to seek premature retirement with pensionary benefit even though at the same time it empowers the Government to retire an employee before he attains the age of superannuation, if that is considered in public interest. Rule 110, however, regulates the age of superannuation. It is apparently on account of this option that in his letter seeking premature retirement, the petitioner had specifically invoked the Pension Rules. It is, thereforee, not possible to hold that the petitioner was entitled to withdraw the letter of retirement before the retirement became effective because sub-rule (2) of Rule 48 clearly makes such withdrawal subject to the specific approval of the authority and the authority in this case admittedly declined such approval. A contention was raised on behalf of the petitioner that the petitioner could not have sought premature retirement before completing 30 years of qualifying service because the petitioner had admittedly put in only 27 years of service in the school. This contention clearly militates against the petitioner's own claim in Annexure R-2 for the service rendered prior to joining the school being recognised for the purpose of qualifying service for pensionary benefits. In the letter, of which Annexure R-2 is a copy the petitioner requested the Deputy Director of Education to compute the qualifying service taking into account the service rendered by him prior to joining the school as the petitioner was 'contemplating to seek voluntary retirement in the coming school session'. This letter was written on February 24, 1978, only two weeks before he submitted his letter seeking voluntary retirement.

(12) In the result, the petition fails and is hereby dismissed. In the peculiar circumstances, there could be no costs.


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